Webmaster’s note: This was originally presented as a lecture at Brigham Young University, J. Reuben Clark School of Law on January 21, 1992. It was later recycled as The Wrong Stuff, 1992 BYU L. Rev. 325. The lecture was repeated during the 1997 Montana State Bar Annual Meeting, and again recycled in the Montana Lawyer as How You Too… Can Lose Your Appeal (and you thought Judge Kozinski didn’t care about the environment!).

The BYU L. Rev. edition is available as a PDF scan. What follows is the Montana Lawyer edition.

When George Bousliman called a few months ago and invited me to come, I said, ‘What could I possibly talk about that would be of interest to members of the State Bar of Montana?’ He said, ‘The truth is, we don’t really care what you say; what we really want is a cover boy for The Montana Lawyer.’

Well, I have my pride. I want to be loved for my intellect, not just my face. So, I decided to talk on a totally irrelevant topic that I know a little something about: How to lose an appeal.

* * *

First, you want to tell the judges right up front that you have a rotten case. The best way to do this is to file a fat brief. So if the rules give you 50 *6 pages, ask for 75, 90, 125–the more the better. Even if you don’t get the extra pages, you will let the judges know you don’t have an argument capable of being presented in a simple, direct, persuasive fashion. Keep in mind that simple arguments are winning arguments; convoluted arguments are sleeping pills on paper.

But don’t just rely on the length of your brief to telegraph that you haven’t got much of a case. No. Try to come up with something that will annoy the judges, make it difficult for them to read what you have written and make them mistrust whatever they can read. Here are a few suggestions: Bind your brief so that it falls apart when the judge gets about half way through it. Or you could try a little trick recently used by a major law firm: Assemble your brief so that every other page reads upside down. This is likely to induce motion sickness and it’s always a fine idea to have the judge associate your argument with nausea. Also–this is a biggie–make sure your photocopier is low on toner or take a key and scratch the glass so it will put annoying lines on every page.

If you are not familiar with Ms. Pacifici, I encourage you to check out her blog. She is an extraordinary researcher. These materials are interesting enough on their own, but you will see that the links take you to the FOIA Resources at The National Security Archive. The Government Attic Blog is also worth a good, long look. -CCE

‘National Security Counselors law firm has obtained a copy of the CIA Directorate of Intelligence Style Manual, Eighth Edition, 2011. It is entitled Style Manual & Writers Guide for Intelligence Publications. The CIA Guide is not alone. Each of the members of the Intelligence Community ­IC ­ have one or more Style Manuals to conform the reports and documents of that agency to a consistent writing style and usage. This is highly important to achieving clear and unambiguous communications of such matters.

I thought by now it was becoming common knowledge that lawyers should avoid using Times New Roman as the font for their legal documents. But I recently had a conversation with an experienced lawyer about font choices in appellate briefs, and this experienced lawyer was trying to tell me that font doesn’t matter. “Just leave it on Times New Roman,” the experienced lawyer said. “That’s what judges are used to; it’s what they expect. There’s no reason to shake it up.” And maybe this is true. Maybe judges, after seeing thousands of court filings, simply get “used to” and “expect” these briefs to look a certain way.

But that doesn’t mean that that’s how judges want things to be. In fact, there’s evidence to the contrary. . . .